Contextual review: the instinctive impulse and unstructured normativism in judicial review

Contextual review is a style of judicial method that has increasing currency within Anglo-Commonwealth judicial review of administrative action. Its hallmark is the rejection of doctrinal or categorical methods to guide judicial supervision (such as the scope, grounds or intensity of review methods that have dominated the framework for judicial intervention). Under contextual review, judges assess the circumstances in the round without any doctrinal scaffolding to control the depth of scrutiny; in other words, intervention turns on an instinctive judicial impulse or overall evaluative judgement. In this paper, I identify and explain the various instances where this method is deployed in judicial review in England and Wales, Canada, Australia, and New Zealand. I also evaluate the efficacy of this approach to review, especially against rule of law standards. Its increasing popularity is a worrying turn, in part because its reliance on unstructured normativism undermines the rule of law.